Doctor-Patient Boundaries: Road Rules and Red Flags by Lee H. Beecher, M.D.

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Regulating professional misconduct

A vital and lawfully mandated function of all Minnesota clinician licensing boards is to protect patients from harm caused by licensees under their regulatory scrutiny. Minnesota licensed psychologists, clinical social workers, nurses, and chiropractors are responsible to their respective state boards, and the Minnesota Department of Health has overseen unlicensed mental health therapists.

The Minnesota Board of Medical Practice (BMP) (www.bmp.state.mn.us) oversees 18,000 physicians. The board is authorized by Minnesota law to identify and deal with physicians and other licensees who show "unprofessional conduct" (defined as departures from minimal standards of acceptable and prevailing medical practice) and "unethical conduct" (behavior likely to deceive or defraud patients). The medical board also seeks to identify doctors who are "incompetent," e.g., as a result of illnesses, including alcoholism and substance abuse. Importantly, unlike the case for malpractice suits, it is not necessary for the patient to have suffered damages in order for the BMP to justify a finding of "unprofessional" or "unethical" conduct for a licensee doctor.

Many complaints to the BMP concern perceived or real complaints of professional boundary violations. In the year ending June 2004, the BMP received 941 complaints. Thirty-three percent were from aggrieved patients, 13 percent from family members, 14 percent from professional liability malpractice settlements (based on presumption of damage due to the negligence of the doctor), and 13 percent from other physicians, nurses, or health care personnel. The specific charges in the 941 FY 2004 BMP complaints included unprofessional conduct (34 percent); incompetency/unethical conduct (34 percent); and sexual misconduct (2 percent).

After investigating the FY 2004 complaints, the board issued 204 formal orders including reprimands, fines, educational programs (e.g., completion of a course on professional boundaries), supervision, and (rarely) license suspensions. Twenty-three percent of the orders were for clinician chemical dependency; 20 percent for illness; 15 percent for unprofessional conduct; 14 percent for unethical conduct; and 2 percent for sexual misconduct with a patient.

The BMP also supports an independent diversion program, the Health Professional Services Program (HPSP), to evaluate and rehabilitate physicians who self-report misconduct and agree to supervised conditions of treatment and monitoring. HPSP protects the public from impaired physicians, who do often regain their competency, self esteem, and can return to ethical clinical practice. A doctor or clinician in HPSP may practice with degrees of supervision and monitoring while undergoing psychiatric, medical, or chemical dependency treatment.

Doctor-patient sex

Doctors who serve as reviewers and consultants for the Minnesota Board of Medical Practice ponder the patterns and characteristics of those physicians found guilty of sexual misconduct by the medical board. Of particular note is the slippery slope of escalating interpersonal boundary violations, which may ultimately result in doctor-patient sex. This process may begin with hugs in the office, holding hands, or end-of-day, unusually long, or off-hours appointments, and may progress to a rendezvous outside of the clinic setting. In many cases, these physicians have abused alcohol, illicit drugs, or prescription medications, and/or had untreated mental disorders. A small number, the rare sociopathic doctors, sexually exploit patients simply because they believe they can get away with this behavior.

Doctor-patient sex is against the law in Minnesota, and doctors can go to jail for this behavior. The rationale for criminal status is the inherent imbalance of power in the clinical doctor-patient relationship. Consenting sex, by law, is therefore not possible (similar to the case for statutory rape involving minors).

Dealing with questionable behavior

The paragraphs below deal with situations that concern potential "red flag" situations involving patient-physician boundaries.

• What should patients do or say if a physician asks to see them away from the office or after regular office hours? Ask the doctor about the purpose of the meeting. If the purpose is nonprofessional, decline the request and promptly contact the clinic manager or another doctor in the clinic to report the incident. In response, the clinic manager or professional colleague will validate your concerns, address the incident with the physician, and meet personally with you soon afterwards. The doctor and clinic must address your concerns about safety and professionalism. You may decide to see another doctor or transfer to another clinic, and you may decide to report the incident to the BMP.
• How should patients respond if a physician touches them in an inappropriate way? In the clinic setting, ask to have a nurse or attendant come into the examining room. Then, state your concern to the nurse and also notify the clinic administrator. File a complaint with the BMP.
• What should a patient do if a physician appears to have been drinking or is high on drugs? Ask a nurse or other staff person to come into the treatment setting. Notify the clinic administrator. Register a complaint with the BMP.

Lee H. Beecher, M. D., is a psychiatrist in private practice in St. Louis Park, president of the Minnesota Physician-Patient Alliance (MPPA), a clinical associate professor of psychiatry at the University of Minnesota, and a trustee of the Minnesota Medical Association.

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